Sometimes tragedy can get the job done faster than anything else.
In March 2007, Florida Congresswoman Debbie Wasserman Schultz reintroduced the Virginia Graeme Baker Pool and Spa Safety Act. The legislation ran out of time the year before as the House deliberated on a pile of bills on the last day of voting.
The new version didn’t move at all for a couple of months. Some believed it was going nowhere.
But that changed following two well-publicized accidents involving 6-year-old children. In June, Abigail Taylor survived a suction-entrapment incident in a resort wading pool in Minnesota. Almost immediately, the Pool & Spa Safety Act gained two new sponsors from that state. A month later, Zachary Cohn drowned after his arm got stuck in a pool drain at his own Greenwich, Conn., home.
As the press showed renewed interest in entrapment hazards, so did federal lawmakers, who passed the law late last year.
Most contractors are ready to build their pools for drowning and entrapment prevention. But the loosely worded law may lead to individual negotiations with states and a key federal agency to hammer out the most effective way to ensure compliance.
This article answers five key questions regarding the new federal Pool & Spa Safety Act.
1. What does the law entail?
The Virginia Graeme Baker Pool & Spa Safety Act is the first federal legislation ever to address drowning and entrapment prevention in pools and spas.
However, it doesn’t call for immediate requirements. Instead of mandating certain devices on all pools, the law gives grant money to states that comply with safety guidelines. The program will be administered by the Consumer Product Safety Commission.
The new law is specific on only two matters, both pertaining to entrapment. First, all pool drains must be capped with anti-entrapment covers. And beginning next December, manufacturers will have to produce drain covers that conform to the ASME/ANSI A112.19.8 performance standard, which can only be changed with CPSC’s approval.
Second, the wording is clear that pools and spas built more than one year after a state enacts its own law should not have single main drains. Instead, they need at least two main drains for each pump, “unblockable drains,” or a drainless circulation system.
As administrator of the program, CPSC will decide the minimum requirements that states must impose to qualify for the grant. The requirements must address drowning and entrapment prevention on all pools and spas. The commission can make changes to those requirements anytime it chooses, as long as the public is notified and given a 30-day period for comment.
In addition, states can impose more stringent standards.
States receiving grant money must use at least half of the funds to hire and train enforcement personnel, and the remainder to provide education for the public, the pool and spa industry, and aquatics facility operators about the state’s safety law.
2. How effective will the law be?
As with anything decided by committee, no one is 100 percent happy with the language. House author Debbie Wasserman Schultz, as well as child-safety groups such as the National Drowning Prevention Alliance, wanted the law to require four-sided fencing around all pools.
“There is disappointment in all of us who are involved in drowning prevention that the Senate version was considerably watered down from the House version,” says Maureen Williams, founding president of the National Drowning Prevention Alliance and the North American public relations manager for D&D Technologies, a manufacturer of gate latches, locks and hinges, based in Huntington Beach, Calif.
For its part, the Association of Pool & Spa Professionals would have preferred that its own standards be used verbatim.
Conversely, manufacturers of safety vacuum release systems wanted the language to specifically call for a backup device to shut off the pump if a vacuum is created in the suction lines.
Opinions aside, the law’s effectiveness no doubt will be determined in part by the states’ motivation to create their own safety legislation. The law only earmarks $2 million in grant money per year for 2009 and 2010, to be spread among the 50 states. When you consider that the 2008 budget for the smallest state in the union, Rhode Island, is $3.4 billion, it’s difficult to believe that the law will snap states into action. (Meanwhile, $5 million annually will be given to CPSC from 2008 to 2012 to develop educational materials. That’s more than double the amount to be split between the participating states.)
“You have to ask yourself how much of an enticement this grant program is,” says Bill Weber, APSP’s president/CEO. “If you take the total amount and divide it by the number of states, it’s not a significant amount of money. So I don’t see the value of this as the grant program.”
More people view the law as a good guideline for regulators and self-motivated legislators in the future. All parties are happy enough with the law to believe that it gets their point across.
“I think the law is a living law and it delegates the authority to the CPSC. It’s going to promote new technologies and performance standards, and we’re going to wind up with safer pools,” says Joe Cohen, president of Denver-based SVRS manufacturer Fail-Safe, LLC. “If I were the president, I would’ve signed it.”
At the very least, some believe the law will make the government more aware of this issue. “If it wakes people up and they understand the need for safety in and around pools, then that’s a wonderful benefit of this,” says Dan Gossage, president of APEC, a Texas industry lobbying group.
3. How will it affect the industry?
Because so many details are left to CPSC and individual states, the full effect of the law is yet to be determined.
Currently, APSP and some manufacturers disagree about whether the law calls for a backup SVRS system. This confusion springs from a vague clause stating that CPSC shall require one of the listed backup systems, “except for pools constructed without a single main drain.”
“I asked about 10 people, and 50 percent said emphatically [the exception applied to] a multiple-drain pool; the other 50 percent said emphatically it meant no drain. So that’s confusing,” Cohen says. He interprets the phrase to mean that a backup system is required on all pools, except those without any main drains at all.
APSP’s Weber, however, thinks the clause refers to pools with one main drain. “It means that if you have multiple drains or no drains, the [devices] are not required,” he says. “If it doesn’t have a ‘single main drain,’ they’re not needed. [The other interpretation] would be a stretch, I think.”
Jonathan Beeton, a spokesperson for Rep. Wasserman Schultz, said, to the best of his understanding the language does not mandate SVRS’s on pools with multiple main drains.
The law is even less specific when it comes to barriers. It tells CPSC that in writing the minimum standards, it must consider covers, gates, doors and pool alarms. It doesn’t state that the commission must include all these devices in its list of barrier options.
That’s OK with Weber, who negotiated with legislators on the language. “It’s nodding in the direction of layers of protection,” he says. “This is one of the primary arguments that we have been making successfully. If you mandate four-sided fencing, many homeowners are not going to abide by it.” The original House bill called for isolation fencing, he points out.
What really matters is how CPSC interprets the wording. And that is unknown at this time. Spokesman Scott Wolfson couldn’t even say how CPSC will determine the standards or whether it will seek input from the industry. The normal procedure for any law would be to involve the commission’s executive and technical review committees, he said, as well as any CPSC division that would be impacted by the law.
Other than that, Wolfson could only state that the group takes the issues of drowning and entrapment prevention seriously. “It is an [issue] CPSC works on every single year to help drive down the more than 250 pool drownings that we know occur with children under age 5,” he says.
It’s important to note that CPSC has published its opinions about barriers and entrapment prevention in Safety Barrier Guidelines for Home Pools and Guidelines for Entrapment Hazards: Making Pools and Spas Safer. The Pool & Spa Safety Act states that minimum standards must satisfy both.
The entrapment-prevention guidelines recommend the “consideration” of a backup system such as an SVRS or vent line on new and existing pools that have dual main drains, gravity-feed systems or other methods designed to prevent a vacuum. If it’s impossible to retrofit a pool or spa with dual main drains and the like, then CPSC states that a backup system should be added.
Because CPSC said on the record that it sees the value of SVRS’s and other backup devices, Cohen thinks they will be required at least on shallow wading pools.
Once CPSC defines the baseline standards, it’s up to the states to enact legislation. Most of the pool-heavy states — including Arizona, California, Connecticut, Florida, Nevada, New York and Pennsylvania — already have laws on the books.
Texas remains the least-regulated state in the Sunbelt, so Gossage thinks it will take the cue. “I do believe the national legislation is going to play a big factor in Texas in this upcoming session,” he says. “I think that since Texas is one of the few states that does not have any effective licensing or stringent regulations when it comes to residential and commercial swimming pools, we’re a target.”
4. Are industry advocates ready for it?
When it comes time to write the CPSC minimum guidelines and individual state legislation, the pool and spa industry will need to negotiate. The industry and safety advocates have expressed an interest in taking less adversarial stances toward one another, but each has different objectives — and both will seek the government’s ear.
“We will make a concerted effort to work with the states to be sure that they take advantage of the grant opportunity by passing barrier legislation,” says Williams of the National Drowning Prevention Alliance. “And we hope we can do that as a partner with the industry.”
“When the final language is developed,” she adds, “we will be working to develop a model barrier standard that states can use to meet and, we hope, exceed the minimum requirements.”
Weber says the industry is ready to work with CPSC and state legislators. He expects the loose language of the federal legislation to demonstrate the need for flexibility. More importantly, he says, the new ANSI/APSP-7 entrapment standard should give the group additional traction, particularly if the International Code Council adopts it next year.
The trade group feels especially confident after last year’s battle in Florida, when its members successfully convinced the state of Florida to remove its SVRS requirement and adopt APSP’s standard. “We presented our data to Florida, and they adopted the APSP/ANSI standards. That sets a good precedent,” says Charlie Schobel, vice president of government affairs for BioLab Inc. and secretary/treasurer of APSP.
Besides the national group, there are industry lobbyists in California, Connecticut, Florida, New Jersey, New York, Pennsylvania and Texas.
“We’re gearing up in hopes of making sure that anything that comes down on our industry in Texas is done so in a logical manner,” says Gossage of Texas’ APEC. The group recently hired a professional lobbyist to help with all the pool-related legislation that has been the trend the past couple of years. It is now beginning to develop informational materials that would help fulfill the Pool & Spa Safety Act’s consumer-education goals.
5. Are pool builders and service technicians ready?
Most builders believe they’re ready, particularly for the drowning-prevention aspects of the job. They’ve been working with the safety devices for years.
Even in less-regulated Texas, builders have to meet some codes. “The local cities all have their specific regulations,” says Debra Smith, vice president and general manager at Pulliam Pools, a Pool & Spa News Top Builder in Fort Worth, Texas, and APEC vice president. “Some require self-latching gates that have to be a certain height. In others, you have to have door alarms.”
While most builders have the ability to conform to new laws, they vary in their attitudes toward the requirements.
What everyone fears are extreme measures and skewed interpretations. For example, New York recently passed a law stating that every pool and spa needs to have an alarm. Inspectors applied this law to portable spas, for which alarms are not made. This left several hot-tub retailers unable to sell one of their highest-ticket items.
“As long as what they require is readily available and doesn’t create a financial crisis, I’m all for it,” says Bruce Bagin, a partner at B&B Pool and Spa Center in Chestnut Ridge, N.Y. “But I just don’t want to see people react without thinking it through to ensure that it’s a viable, workable process.”
Considering the lack of licensing laws in Texas, some contractors there welcome any ruling that will make their competitors more accountable.
Steve Toth, for instance, has included safety devices on his projects for years and wants to work on a more level playing field with those who build cheaper pools without the devices. “I would like to see some type of state legislation that demands that pool builders meet current ANSI standards,” says Toth, owner of Acclaim Pools, LLC, in The Woodlands, Texas. “If we’re going to all the trouble to do this stuff, I want other people to do it, too.”
Others take a more cautious approach.
“I think it’s a double-edged sword,” says Guy Wood, president of Westside Watershapes in Fort Worth, Texas. “It’s good to have legislation that’s going to make the industry more accountable, but if we’re not careful, we’ll have unqualified people telling us how to do our jobs.”
